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BULLETIN 


OF     THE 


Iniit^rjettg  nf  ^nn  M^xxta 


WHOLE     NO.     57 


OCTOBER,    1910 


,  \  O  D  R  E  5  S  E  £ 

THE     MAKINGOF 

A    CONSTITUTION 

BY 

H.     B.     f=;ERGUSSON 
AND 

FRANK    W.     CLANCY 


ALBUQUERQUE,     NEW     MEXICO 


Pub!i»he<l  Quarterly  by  the  UnivetsitV  of  New  Mexico.    Entered  May  1 .  1906,  at  Albuqirr 
que.  New  Mexico,  a«  second  4j'm  msiiet,  under  act  of  Congrats  of  July  1^,  1894 


,tl8iTY0lH;AliF<)x 


THE  MAKING  OF  A 
CONSTITUTION 


INTRODUCTION  BY  E.  McQUEEN   GRAY 


Having  regard  to  the  importance  which  rightly  at- 
taches to  the  transitional  period  through  which  the 
Territory  of  New  Mexico  is  now  passing  and  to  the 
far  reaching  effects  of  such  a  civic  and  social  change 
as  now  is  imminent,  affecting  not  merely  the  popula- 
tion of  the  Territory  as  a  body  politic,  but  the  mutual 
relations  of  each  and  every  citizen  to  one  another  and 
to  the  State,  it  has  seemed  advisable,  in  the  interest  of 
the  student  body  of  the  University  of  New  Mexico,  to 
use  every  opportunity  that  might  present  itself  to  lay 
before  the  students  the  views  of  leading  citizens  in  re- 
spect to  the  rights,  duties  and  privileges  of  the  citi- 
zens of  a  State  under  the  Union ;  and  as  the  public 
transactions  at  present  occupying  the  attention  of  the 
people  of  tlie  Territory  ctMisist  in  the  framing  of  regu- 
lations for  the  future  governance  of  the  State,  I  took 
leave  to  invite  expressions  on  this  head  from  two  well 
known  representatives  of  the  two  political  parties  in 
order  that  you  might  be  able  to  form  an  opinion  as  to 
what  matters  should  properly  come  within  the  scope  of 
the  deliberations  of  those  who  have  been  selected  ot 
frame  the  constitution  of  the  future  State,  and  also  to 
get  some  idea  as  to  the  manner  in  which  a  different 
point  of  view  affects  an  estimate  of  the  same  subject. 

Both  of  the  speakers  who  have  appeared  ])efore  you 


2  UNIVERSITY  OF  NEW   MEXICO 

are  men  who  enjoy  the  general  esteem  of  the  citizens  of 
the  Territor3\  and  both  are  entitled  to  respectful  atten- 
tion ;  but  it  must  be  premised  that  their  attitude  is 
not  to  be  understood  as  representing  the  consensus  of 
opinion  of  either  of  the  two  political  parties  to  which 
they  belong.  Instead  therefore  of  a  Democratic  or  Re- 
publican point  of  view  in  regard  to  tlie  making  of  a 
constitution,  you  have  listened,  strictly  speaking,  to  two 
addresses  on  that  subject,  one  delivered  by  a  Democrat 
and  the  other  by  a  Republican.  How  far  the  views  of 
either  speaker  represent  the  attitude  of  the  respective 
parties  is  a  question  which  it  is  not  appropriate  to  dis- 
cuss in  this  place;  but.  inasmuch  as  the  question  of  civic 
duties  and  privileges  will  occupy  your  attention  during 
a  large  part  of  the  academic  year.  I  feel  it  incumbent  on 
me  to  advise  you  in  all  such  matters  as  are  affected  by 
or  subject  to  political  or  party  considerations  to  observe 
the  old  adage,  audi  alteram  partem — listen  to  the 
other  side. 

Properly  considered,  no  place  offers  more  suitable 
conditions  for  the  consideration  of  such  questions  as 
the  one  which  has  been  presented  to  you  as  does  a 
State  University,  with  which  institution  a  partisan  atti- 
tude is  wholly  incompatible,  but  which  may  appropri- 
ately offer  an  open  forum  for  the  free  and  untrammeled 
expression  of  opinion  on  all  subjects  affecting  the  gen- 
eral welfare  from  those  who  are  entitled  to  speak  with 
authority  thereon.  Such  an  opportunity  has  been  of- 
fered to  the  speakers  who  have  addressed  you  and  I 
trust  that  you  who  have  listened  to  them  have  profited 
thereby. 

In  view  of  the  relation  of  the  addresses  to  the  subject 
of  discourse.  "The  Making  of  a  Constitution,"  some 
information  of  a  more  technical  character  will  not  here 
be  out  of  place. 


THE   MAKING   OF  A   CONSTITUTION  3 

The  Constitution  of  a  State  is,  in  its  essential  char- 
acteristic, the  fundamental  organic  law  of  the  State. 
All  subsequent  legislation  and  all  social  relations  must 
be  based  in  conformity  with  its  provisions;  it  is  at 
once  the  foundation  and  the  framework  of  the  future 
edifice  in  which  the  rights  of  the  people  are  safe- 
guarded, their  duties  set  forth  and  their  privileges  de- 
fined. It  is  brought  into  being  by  the  consent  of  the 
general  body  of  citizens  and  is  capable  of  being  altered 
or  repealed  in  that  manner  alone.  Being  the  concrete 
expression  of  the  popular  will,  it  stands  above  the  legis- 
lature and  the  executive,  both  of  whom  derive  their 
powers  from  its  provisions ;  and  any  legislative  or  exe- 
cutive action  which  is  inconsistent  with  these  provisions 
or  in  excess  of  the  powers  conferred  by  them,  is  with- 
out validity.  The  State  itself  exists  by  virtue  of  its 
constitution. 

Being  therefore  not  merely  important  to  the  general 
welfare  but  essential  to  the  very  existence  of  the  State, 
the  making  of  a  Constitution  is  the  most  serious  civic 
action  which  citizens  can  perform;  for  upon  the  char- 
acter of  their  performance  the  future  of  the  State  and 
of  its  citizens  will  largely  depend.  The  procedure  to  be 
followed  in  the  case  of  New  Mexico  and  Arizona  has 
therefore  been  carefully  designed  to  furnish  security  to 
all  concerned. 

In  general  terms,  the  object  of  a  State  Constitution 
is  the  same  as  that  which  was  aimed  at  by  the  framers 
of  the  original  Constitution  of  the  United  States ;  but 
in  the  framing  of  the  instrument  itself  a  more  or  less 
uniform  procedure  is  followed,  founded  largely  upon 
the  methods  observed  in  drafting  the  constitutions  of  the 
original  States,  which  were  themselves  the  continuation 
and  development  of  the  early  colonial  charters.    Of  re- 


4  UNIVERSITY  OF  NEW  MEXICO 

cent  years  the  framework  of  a  State  Constitution  has 
been  fashioned  much  after  the  following  manner :  Be- 
ginning with  a  Preamble,  it  may  be  divided  into  the 
following  sections :  Definition  of  extent  and  boun- 
daries of  the  State;  The  Bill  of  Rights;  The  Frame 
of  Government;  Administration  and  Laws;  The 
Schedule. 

The  Preamble  states  in  general  terms  the  objects 
aimed  at  by  the  Constitution.  No  better  example  of  a 
Preamble  exists  than  the  one  prefixed  to  the  Constitu- 
tion of  the  United  States  and  running  as  follows : 

"We,  the  people  of  the  United  States,  in  order  to 
form  a  more  perfect  union,  establish  justice,  insure  do- 
mestic tranquillity,  provide  for  the  common  defence, 
promote  the  general  welfare,  and  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity,  do  ordain  and  es- 
tablish this  Constitution  for  the  United  States  of 
America." 

The  Bill  of  Rights,  which  generally  follows  the 
definition  of  the  extent  and  boundaries  of  the  State,  is  a 
statement,  more  or  less  expanded,  of  the  right  of  the 
citizen  to  liberty  of  person  and  security  in  respect  to 
prosperity,  freedom  and  equality  in  regard  to  religion, 
and  other  rights  of  similar  scope  and  character.  The 
enumeration  varies  considerably  in  the  different  States, 
but  in  all  the  aim  is  the  same — to  secure  to  each  and 
every  citizen  those  rights  and  privileges  which  are 
generally  understood  to  be  essential  to  the  enjoyment 
of  freedom  in  a  republican  commonwealth. 

In  the  Frame  of  Government  we  have  a  section  which 
pro\ides  for  the  machinery  whereby  the  government  of 
the  State  will  be  administered.  This,  as  you  are  aware, 
is  in  its  essential  parts  identical  in  all  the  States, 
being  substantially  a  democratic  development  of  the 


the:  making  of  a  constitution  5 

old  colonial  form  of  government.  Everywhere  we 
have,  as  you  know,  a  chief  executive  or  governor,  a 
number  of  administrative  officers,  appointed  or  elective, 
a  legislative  assembly  consisting  of  two  houses,  a  judi- 
cial system  and  a  system  of  local  self  government ; 
minor  differences,  in  regard  to  term  of  office,  qualifica- 
tions for  official  or  representative  positions,  methods  of 
local  government,  and  so  forth,  are  frequently  found ; 
but  the  main  plan  is  practically  the  same. 

The  section  dealing  with  general  administration  and 
law,  frequently  termed  Miscellaneous  Provisions,  is  at 
once  the  most  important  and  the  most  interesting  part 
of  the  Constitution ;  and  you  will  have  observed  that 
both  of  the  speakers  who  addressed  you  directed  your 
attention  in  real  measure  to  matters  which  would  be  as- 
signed to  that  section.  This  miscellaneous  division 
covers  such  subjects  as  military  service,  taxation,  reve- 
nue, law,  public  debt,  banking,  railways,  education,  and 
agriculture ;  and  has  of  late  years  come  to  include  many 
other  matters  not  strictly  constitutional,  but  for  the 
settlement  of  which  the  framing  of  a  Constitution 
would  seem  to  offer  an  opportunity.  The  tendency, 
of  late  years  appears  to  be  to  endeavor  to  use  the  pro- 
visions of  a  Constitution  for  the  expression  of  the  feel- 
ing and  desire  of  tlie  people  in  regard  to  many  social 
and  economic  problems  and  for  the  abatement  of  mis- 
chievous conditions;  and  this  tendency  may  be  taken  as 
representing  the  general  trend  of  popular  government. 

The  Schedule  sets  forth  the  method  by  which  the 
Constitution  shall  be  submitted  to  the  vote  of  the  peo- 
|)lc  and  the  manner  in  whicli  the  change  from  the  Ter- 
ritory to  the  State  shall  be  brought  about. 


'    ihe  Making  of  a  Constitution' 

BY  H.  B.  FERGUSSON 

Delivered  at  Rodey  Hall,  University  of  New  Mexico 
September  19tli,  1910 


Congress  has  lately  passed  the  Enabling  Act,  grant- 
ing the  authority  to  New  Mexico  to  form  a  constitu- 
tion, and  enter  the  Union  as  a  state,  upon  exactly  the 
same  footing  as  all  other  state.  The  usual  conditions 
and  restrictions  are  contained  in  our  Enabling  Act,  as 
in  those  of  other  states,  mainly  relating  to  Federal 
power  and  rights  under  our  peculiar  form  of  govern- 
ment, with  one  exception — that  requiring  all  state  offi- 
cers of  the  State  of  New  Mexico  to  be  able  to  read, 
write  and  understand  the  English  language. 

If  we  form  for  the  State  of  New  Mexico  a  constitu- 
tion not  in  conflict  with  the  constitution  of  the  United 
States,  complying  with  the  conditions  and  restrictions 
of  the  Enabling  Act,  and  republican  in  form,  it 
will  be  the  duty  of  the  President  to  declare  that  New 
Alexico  is  a  state. 

From  the  beginning,  as  to  every  state  in  the  Union, 
it  has  been  conceded  that,  having  complied  in  their 
constitution  and  laws  with  the  requirements  of  the 
Federal  law,  the  people  of  the  state  are  sovereign  in 
regulating  their  own  internal  affairs;  their  power  is 
left  supreme  to  govern  themselves. 

The  requirement  that  the  constitution  shall  be  "re- 
publican in  form,"  evidently  means  that  the  power  of 
the  people  shall  be  exercised,  in  governing  themselves, 
through  the  well-approved  channels  of  legislative,  ex- 
ecutive and  judicial  departments;  the  officers  in  those 


THE   MAKING   OF  A   CONSTITUTION  7 

departments  being  none  the  less  the  agents  and  repre- 
sentatives of  the  people. 

Some  of  the  oponents  of  the  initiative,  the  referen- 
dum and  other  principles,  designed  to  enable  the  people 
to  correct  abuses  of  state  government,  on  the  part  of 
the  representatives  of  the  people,  seem  to  assume  that, 
once  elected,  officials  are  infallible  for  the  terms  for 
which  they  are  elected,  or,  at  least,  however  corrupt  or 
false  to  the  people  they  may  prove  to  be,  that  they  or 
their  acts  cannot  be  reached  or  controlled  by  the  peo- 
ple, even  by  constitutional  provision;  that  even  in  the 
state  constitution,  the  initiative,  the  referendum,  etc., 
would  be  unconstitutional  under  the  constitution  of 
the  United  States. 

But  that  the  representatives  of  the  people  in  a  legis- 
lative body  may  go  wrong,  is  recognized  by  the  power 
of  the  veto,  universally  vested  in  the  Governor;  that 
the  executive  in  this  function,  may  need  supervision,  is 
recognized  by  the  provision  that  the  Governor's  veto 
may  be  overridden  by  a  two-thirds  vote  of  the  legisla- 
ture. And  even  the  judges  may  be  impeached,  to  say 
nothing  of  the  fact  that  stringent  rules  are  provided  for 
appeals  from  their  decisions.  And  in  the  Enabling  Act 
itself  it  is  provided  that  after  the  constitution  has  been 
prepared,  by  the  representatives  of  the  people,  elected 
for  the  purpose,  it  shall  be  submitted  to  the  vote  of  the 
people  for  acceptance  or  rejection.  Tliis  is  the  referen- 
dum, applied  by  Congress.  It  recognizes  that  ultimate 
power  is  still  in  the  hands  of  the  people,  and  may  be 
constitutionally  exercised,  even  in  momentous  affairs, 
over  their  elected  representatives. 

Precisely  the  same  principle,  thus  applied  by  Con- 
gress, we  advocate  for  insertion  in  New  Mexico's  con- 
stitution.   We  want  the  people  to  reserve  to  themselves 


8  UNIVERSITY  OF  NEW   MEXICO 

in  their  constitution,  the  power  to  reject  or  annul  any 
law  that  the  legislature  of  the  State  of  New  Mexico 
may  hereafter  pass.  It  is  but  an  additional  restriction, 
or  people's  safeguard,  over  or  against  the  ignorance,  or 
carelessness,  or  self-interest,  or  corruption  of  the  peo- 
ple's representatives  in  the  legislature. 

The  initiative  is  the  counterpart  of  the  referendum, 
the  other  blade  of  the  scissors,  so  to  speak.  It  is  the 
power,  reserved  to  the  people  in  their  constitution,  to 
propose  a  law,  deemed  necessary  or  beneficial  to  the 
general  welfare;  and  if  the  legislature  refuses  to  enact 
it,  whether  from  indifference  or  because  of  the  corrupt 
influence  of  special  interests  that  might  be  affected  by 
the  proposed  law,  then  to  have  a  day  reserved  for  a 
vote  by  all  the  voters  of  the  state,  as  to  whether  such 
proposed  law  shall  become  an  actual  law.  And  if  a 
majority  is  found  to  have  voted  in  favor  of  the  law, 
then  the  Governor  shall  proclaim  it  to  be  a  law  of 
the  State. 

These  principles,  then,  known  as  the  initiative  and 
referendum,  and  other  cognate  ones,  such  as  the  recall, 
direct  primaries  strictly  controlled  by  law,  for  the  nom- 
ination of  candidates  of  the  political  parties,  the  nom- 
ination of  United  States  senators  by  direct  vote  of  the 
people  themselves  rather  than  by  the  people's  represen- 
tatives in  legislatures  assembled — are  not  in  contra- 
vention of  the  constitution  of  the  United  States;  be- 
cause they  do  not  change  the  "republican  form"  of  any 
state  government,  but  are  merely  safeguards  to  pro- 
mote the  beneficial  character,  the  virility,  the  purity 
and  the  perpetuity  of  our  system  of  representative  gov- 
ernment. 

Otliers  object  that  the  principles  give  too  much  power 
to  the  people,  that  they  will  result  in  "mob  rule".    This 


THE  MAKING  OF  A  CONSTITUTION  9 

objection  begs  the  question,  and  raises  the  issue 
whether  any  people  are  capable  of  governing  them- 
selves. Are  we  ready  to  give  up  on  that  issue  and 
abandon  a  system  of  government  which  Washington 
and  Jefferson  founded,  which  Jackson  vindicated,  and 
which  Lincoln  prayed  might  never  perish  from  the  face 
of  the  earth? 

The  purpose  of  the  initiative  and  referendum  is,  not 
to  change  the  form  of  the  government,  but  to 
strengthen  the  system  of  the  people's  government,  in 
the  one  point  where  it  has  been  found  weak,  namely — ■ 
the  inability  of  the  officers,  or  representatives,  elected 
by  the  people,  to  resist  the  power  of  great  concentrated 
wealth,  which,  while  very  powerful,  at  the  same  time 
has  been  shown  also  to  be  insatiable,  conscienceless,  if 
not  actually  criminal,  and  utterly  oblivious  to  all  senti- 
ments of  patriotism,  or  fair  play. 

x\nother  objection  urged  is,  that  the  initiative  and 
referendum  will  result  in  too-frequent  elections.  This 
objection  is  not  worthy  of  much  consideration ;  for  as 
soon  as  legislatures  become  responsive  to  the  needs  of 
the  people,  and  temptation  has  been  removed  to  become 
the  representatives  and  servants  of  "predatory  wealth" 
and  "malefactors  of  great  wealth",  to  borrow  from  the 
vivid  vocabulary  of  the  resolute  Roosevelt,  the  initiative 
and  the  referendum  and  the  recall  will  not  need  to  be 
used  often.  The  very  power  in  the  people  to  quickly 
undo  any  wrong  done  by  their  representatives,  will  dis- 
courage the  doing  of  the  wrong. 

It  is  also  urged  that  we  will  not  be  admitted  as  a 
state  if  we  insert  in  our  constitution  these  progressive 
principles.  There  are  two  answers  to  this  threat  of  the 
corporations  and  other  special  interests.  One  is,  that 
if  we  are  willing  to  pay  such  a  price  for  statehood  as 


10  UNIVERSITY  OF  NEW  MEXICO 

cowardly  refraining  from  putting  into  our  constitution 
such  provisions  as  we  please,  or  such  safeguards  as  we 
believe  will  promote  the  happiness,  prosperity  and  good 
government  of  our  state,  we  are  unworthy  of  state- 
hood !  And  if  the  threat  should  be  made  good,  and  our 
constitution  rejected  by  this  administration,  because 
we  refuse  to  make  our.  state  and  her  wealth  the  prey, 
the  common  plundering  ground,  of  the  trusts  and  mon- 
opolies, as  they  are  now  trying  to  make  the  Territory 
of  Alaska,  we  can  well  afford  to  wait  for  statehood  un- 
til another  administration  comes  into  power.  The  ris- 
ing tide  of  indignation  against  government  of  the  spe- 
cial interests,  by  the  special  interests  for  the  special 
interests,  as  manifested  by  the  late  elections  in  the 
Democratic  states  of  Georgia  and  Arkansas,  and  the 
Republican  states  of  California,  Maine,  New  Hamp- 
shire, Massachusetts,  Michigan,  Wisconsin,  and  the 
State  of  Washington,  insures  that  a  great  flood  of  old- 
time  American  patriotism  will  soon  sweep  from  power 
this  sordid  plutocracy;  and  then  we  shall  go  in  as  a 
state  under  our  home-made  constitution,  as  befits  free 
American  citizens. 

The  other  answer  to  this  threat  is,  that  there  is  no 
danger  that  President  Taft  will  refuse  us  statehood 
because  our  constitution  contains  these  principles.  Ok- 
lahoma was  admitted,  and  the  number  of  Republican 
states  which  have  already  amended  their  constitutions 
by  inserting  them,  and  the  larger  number  that  are 
striving  to  thus  amend  their  constitutions,  remove  the 
danger  of  such  action  by  the  President.  The  Republi- 
can state  convention  of  California,  after  many  years  of 
brutal  control  of  that  state  by  the  Southern  Pacific 
Railroad,  has  in  the  last  few  days  declared  for  them  in 
these  words :     "The  submission  to  the  people  of  con- 


THE   MAKING   OF"   A   CONSTITUTION  H 

stitutional  articles  providing  for  direct  legislation  in  the 
state,  and  in  county  and  local  governments,  through 
the  initiative,  the  referendum  and  the  recall." 

The  advantages  of  these  principles  are  obvious.  They 
will  remove  temptation  from  weak  representatives  of 
the  people,  by  taking  away  from  the  special  interests 
the  profit,  or  motive,  for  the  corruption  of  legislatures 
or  city  councils.  They  will  not  spend  money  to  induce 
the  people's  representatives  to  do,  or  fail  to  do.  what 
the  people  will  undo  or  do  themselves  in  short  order. 

But  a  controlling  reason  why  we  should  make  them  a 
part  of  our  constitution  is  set  forth  in  a  thoughtful 
speech,  in  advocacy  of  our  so  adopting  them,  by  cx- 
Governor  Hagerman.    We  quote : 

"One-ninth  of  the  whole  area  of  the  Territory  of  New 
Mexico  is  granted  to  the  new  state  by  section  seven  of  the 
Enabling  Act;  that  is  to  say,  one  eighteenth  of  the  whole 
present  area  of  New  Mexico,  in  addition  to  what  has  already 
been  granted  by  the  Act  of  June  28th,  1898,  known  as  the 
Pergusson  Act.  The  Fergusson  Act  granted  sections  sixteen 
and  thirty-six  for  the  support  of  common  schools,  and  this 
Enabling  Act  appropriates  in  addition,  sections  two  and 
tl'.irty-two   of  each   township.      .      .  This   means  one-ninth 

of  78,300,000,  or  8,700,000  acres,  inasmuch  as  .sections  sixteen 
and  thirty-six,  which  already  have  been  granted  to  the  terri- 
tory, cannot  be  sold  until  after  we  become  a  state.  The  En- 
abling Act  distinctly  provides,  too,  that  when  any  of  the 
sections  are  mineral,  or  have  been  disposed  of.  or  reserved  in 
any  manner  by  homestead  or  otherwise,  lieu  selections  of 
like  quantity  may  be  made. 

"But  there  is  much  more  than  this  which  will  come  under 
the  management  of  the  future  State  Land  Board.  The  Act  of 
1898  granted  to  various  territorial  institutions  and  for  irri- 
gation purposes,  1,197,000  acres  of  land.  .  .  Now.  the 
Enabling  Act  grants  to  these  various  institutions  an  addi- 
tional amount  of  1.2,t0,000  acres,  and  also  1,000.000  acres 
more  to  pay  the  Santa  Fe  and  Grant  County  bonds.  This 
makes  a  grand  total  of  12.147.000  acres  of  land,  selected,  and 


12  UNIVERSITY  OF  NEW  MEXICO 

to  be  selected,  which  will,  when  the  state  is  completely  sur- 
veyed, be  in  the  hands  of  the  people  of  the  state,  or  in  the 
hands  of  their   representatives." 

I  would  add  to  what  Governor  Hagerman  so  aptly 
says,  that  the  land  granted  in  1898  has  been  handled  in 
such  a  maner  by  the  ruling  regime  in  this  territory  as 
to  rouse  the  suspicion  and  incur  the  condemnation  of 
many  good  citizens  of  New  Mexico. 

Shall  we  not  adopt  the  initiative  and  the  referendum, 
and  every  other  safeguard  possible,  to  save  this  im- 
mense domain  from  marauders  of  high  and  of  low  de- 
gree? Shall  we  not  prevent  special  interests  and  their 
representatives  from  realizing  on  this  land,  and  shall 
we  not  keep  the  power  of  the  people  in  close  control  of 
it,  for  the  building  up  of  our  common  schools,  and  for 
other  educational  and  charitable  institutions?  An  hon- 
est and  economical  administration  of  that  immense 
landed  estate  will  make  our  schools  and  colleges,  and 
our  public  institutions  of  every  kind,  rich  and  prosper- 
ous, and  place  them  in  the  front  rank  of  efificiency.  use- 
fulness and  high  excellence,  in  our  national  civilization, 
without  adding  to  our  already  burdensome  taxation. 

It  is  idle  for  the  special  interests,  and  their  agents 
and  attorneys  in  New  Mexico,  to  attempt  to  charge  that 
we  will  drive  capital  from  the  state  and  prevent  other 
capital  from  coming  in.  This  threat  is  a  hoary  old  ani- 
mal with  its  fangs  long  since  drawn.  It  was  the  cry 
from  the  beginning  of  the  movement  to  regulate  rail- 
roads by  the  general  government  and  by  the  states, — 
Iowa,  Texas.  Kansas, — they  need  not  all  be  named. 
Texas,  our  neighbor,  laughing  at  the  threat,  inaugu- 
rated a  vigorous  control  over  railroads :  and  since  such 
control  was  put  in  force,  the  railroad  mileage  of  Texas 
has  been  vastlv  increased.     So  in  other  states.     And 


THE   MAKING   OF  A   CONSTITUTION  13 

since  control  by  the  general  government  and  by  many 
of  the  states  through  which  it  runs,  the  Santa  Fe  rail- 
load  system  has  seen  its  common  stock  rise  in  value 
from  about  twenty  cents  on  the  dollar  to  about  par,  or 
one  hundred  cents,  as  pointed  out  by  John  Z.  White. 
Nobody  in  New  Mexico  desires  to  use  the  people's 
power  to  oppress  the  railroads.  On  the  contrary,  we 
welcome  railroads  and  all  other  forms  of  corporate 
wealth.  We  propose  to  make  and  improve  the  laws  of 
the  state  of  New  Mexico  so  as  not  only  to  protect 
them  in  their  rights  under  the  law ;  but  so  as  to  insure 
the  mample  returns  on  all  tlie  capital  invested.  We 
want  developed  our  vast  forests  of  timber,  our  millions 
of  acres  of  untouched  coal,  our  hidden  wealth  in  the 
precious  metals,  our  agricultural  possibilities  under  ir- 
rigation and  improved  methods  of  farming ;  and  VvC 
welcome  associated  capital,  or  corporations,  which  are 
indispensable  under  the  business  processes  of  our  time, 
to  do  those  things.  But  the  people,  and  the  constitu- 
tion and  laws  of  the  people,  must  be  supreme  and  must 
be  acknowledged  and  obeyed.  Less  than  this,  or  otiier 
than  this,  would  be  to  yield,  or  allow  to  be  forced  from 
us.  immunity  for  the  special  interests,  full  license,  with- 
out restraint  of  law,  to  apj^ropriate  for  their  own  fur- 
ther enrichment,  our  boundless  resources. 

The  Enabling  Act  provides  for  two  constitutional 
conventions,  or.  rather,  for  a  second  assembling  of  the 
constitutional  delegates  which  were  elected  on  Septem- 
ber 6th,  if  tlie  ])eoplc  should  reject  at  the  polls  the  work 
of  the  convention  at  its  first  sitting.  If  the  constitution 
promulgated  by  the  convention  which  will  convene  early 
in  October,  should  be  rejected  by  the  people,  it  then  be- 
comes the  duty  of  the  Governor  to  call  within  twenty 
davs  after  such  rejection,  another  session,  or  meeting 


14  UNIVERSITY  OF  NEW  MEXICO 

of  the  delegates,  for  the  purpose  of  preparing  another 
constitution,  to  be  submitted  to  a  vote  of  the  i^eople.  So 
we  shall  not  defeat  immediate  statehood,  on  our  part, 
by  voting  down  the  first  constitution  offered.  It  is, 
therefore,  earnestly  to  be  hoped  that  if,  by  the  influ- 
ence of  special  interests,  these  progressive  provisions 
are  not  inserted  in  the  constitution,  the  people  will  re- 
ject it.  If  they  do  so,  perhaps  the  convention,  when  it 
re-assembles  within  twenty  days,  under  the  call  of  the 
Governor,  instructed  by  so  recent  a  vote  of  the  people, 
will  yield  to  the  wishes  of  the  people.  If  not,  let  us  re- 
ject statehood  on  such  debasing  conditions. 

But  we  need  not  yet  despair  of  statehood  under  the 
Enabling  Act!  It  cannot  be  doubted  that  a  large  ma- 
jority of  the  people  of  New  Mexico  are  in  favor  of  a 
progressive  constitution  that  will  insure  to  the  new  state 
honest,  decent  and  economical  government.  It  is  true 
there  is  a  nominal  Republican  majority  in  the  consti- 
tutional convention ;  but  many  of  these  Republican  del- 
egates were  elected  upon  platforms  pledging  such  dele- 
gates to  a  progressive  constitution.  San  Miguel 
County  (nine  delegates)  and  Colfax  County  (five  dele- 
gates) are  understood  to  be  opposed  to  a  progressive 
constitution,  or  to  any  restrictions  on  corrupt  county 
bosses  and  their  corrupt  methods  at  elections,  as  well 
as  to  any.  restrictions  on  corporations,  even  if  owned 
largely  in  foreign  lands,  and  the  control  by  such  cor- 
])orations  of  the  ballot  boxes,  and  even  the  casting  of 
the  ballots  by  free  American  citizens!  In  short,  they 
are  understood  to  be  opposed  to  any  constitution  with 
anything  in  it  but  what  is  "safe  and  sane"  for  the  afore- 
said county  bosses  and  the  aforesaid  corporations.  un- 
American  certainly  in  their  practices ! 

Let  the  people  be  active  and  incessant,  through  their 


THE   MAKING  OF  A   CONSTITUTION  15 

free  newspapers,  and  by  letters  and  conversation,  in 
urging  upon  their  delegates  the  great  responsibility 
they  are  under  to  give  the  people  a  constitution  fit  for 
honest  men  to  live  under,  and  that  will  bring  about,  in 
New  Mexico,  "the  greatest  good  to  the  greatest  num- 
ber." 

I  thank  you,  ladies  and  gentlemen  of  the  faculty  and 
students  of  the  University  of  New  Mexico,  for  lending 
to  me  this  elevated  point  of  vantage  before  you,  to  speak 
what  I  feel  so  deeply,  upon  "the  making  of  a  constitu- 
tion." 


'"'Tlie  Making  of  a  Constitution 

ADDRESS  BY  FRANK  M.  CLANCY 

Delivered    at    the    University    of    Herw   Mexico 
September  26tb,  1910 


I  have  been  admonished  that  there  is  a  time  limit  of 
forty  minutes  which  must  be  observed  by  those  who 
address  you  upon  such  occasions  as  this,  and  therefore 
I  shall  be  able  to  do  no  more  than  briefly  to  touch  upon 
the  more  salient  and  important  matters  to  be  embodied, 
or  avoided,  in  a  state  constitution. 

It  will  be  unfortunate  if  the  making  of  our  constitu- 
tion is  to  be  treated  as  a  partisan  political  matter,  and 
it  is  to  be  hoped  that  on  few,  if  any,  questions,  will  our 
approaching  convention  be  divided  on  party  lines,  al- 
though there  are  strong  efforts  being  made  to  bring 
about  such  an  undesirable  condition.  I  am  quite  sure 
that  many  Democrats  would  agree  with  me  as  to  the 
greater  part  of  what  I  shall  say  to  you  today,  and  I  am 
equally  sure  that  some  Republicans  would  not.  To  the 
student  of  our  political  history,  who  has  familiarized 
himself  with  the  principles  of  the  great  political  par- 
ties of  our  country,  it  will  be  clear  that  my  views  are  in 
harmony  with  the  tenets  of  that  party,  called  at  differ- 
ent times  federalist,  whig,  republican,  which  has  always 
stood  for  strength  and  stability  of  government,  com- 
bined with  due  protection  of  the  citizen,  and  for  con- 
centration of  power  and  consequent  increased  sense  of 
responsibility,  as  contrasted  with  that  opposite  school 
of  thought,  which,  while  ardently  devoted  to  the  advo- 
cacy of  the  rights  of  the  individual,  is  based  upon  hos- 
tility to,  and  jealousy  of,  all  exercise  of  governmental 


the;  making  of  a  constitution  17 

power  (a  remnant  of  the  feeling  of  past  ages  when 
government  was  by  the  few,  under  claim  of  "divine 
right"  against  the  many)  and  which,  could  it  have  had 
full  control  in  the  first  years  of  the  republic,  unchecked 
by  a  federalist  supreme  court,  would  almost  certainly 
have  disintegrated  our  national  government. 

I  shall  avoid  any  criticism  of  the  motives  of  those 
who  do  not  agree  with  my  views  and  also  any  appeal 
to  popular  prejudice  or  party  political  feeling,  although 
I  cannot  refrain  from  calling  attention  to  the  fact  that 
those  who  do  not  agree  with  what  I  have  to  say,  appear 
to  consider  vituperation,  personal  abuse  and  eloquent 
denunciation  as  argument  on  such  questions. 

In  the  consideration  of  the  subject  of  the  making  of 
a  constitution,  it  will  be  well  at  the  outset  to  present 
some  distinct  and  definite  idea  of  what  a  constitution 
is,  or  should  be.  While  it  is  true  that  we  all  may  have 
in  mind  definitions  of  a  constitution,  yet  a  clear,  concise 
statement,  embodying  the  substance  of  the  best  of  them, 
may  tend  to  make  more  intelligible  what  may  be  said 
on  the  subject. 

It  may  be  taken  as  axiomatic  in  this  country  that  the 
source  of  all  governmental  power  is  to  be  found  in  the 
people  themselves,  or  in  the  "consent  of  the  governed." 
A  state  constitution,  then,  must  be  an  expression  of  the 
will  of  the  people, — an  expression  of  the  "consent  of 
the  governed," — as  to  the  method  by  which  government 
shall  be  carried  on.  From  the  numerous  judicial  ex- 
pressions by  the  appellate  courts  of  the  country,  we  may 
condense,  as  a  satisfactory  and  comprehensive  defini- 
tion, that  a  state  constitution  is  a  compact  by  and  be- 
tween the  citizens  to  govern  themselves  in  a  sj^ecified 
manner,  setting  out  first  principles  of  fundamental  law 
as  the  permanent  will  of  the  people,  regulating  the  di- 


18  UNIVERSITY  OF  NEW  MEXICO 

vision  of  governmental  powers  while  at  the  same  time 
limiting  and  controlling  their  exercise,  and  should,  in 
brief,  constitute  the  framework  of  the  government.  Be- 
ing, thus,  properly  only  a  framework,  it  should  not 
descend  to  a  regulation  of  the  details  of  governmental 
business,  nor  attempt  by  provisions  akin  to  legislation, 
to  provide  for  immediate,  possibly  temporary,  exigen- 
cies, but  should  do  no  more  than  indicate  on  broad, 
general  lines,  the  powers  of  the  different  departments 
of  the  government,  and  the  necessary  limitations  to  the 
exercise  of  those  powers. 

From  this  it  will  be  readily  seen,  as  a  general  proposi- 
tion, that,  in  the  making  of  a  state  constitution,  there 
would  seem  to  be  no  limit  upon  the  power  and  author- 
ity of  the  people,  but  there  is  one  general  limitation 
which  must  always  be  kept  in  mind,  and  that  is  in  the 
constitutional  guarantee  that  every  state  shall  have  a 
republican  form  of  government,  which  naturally  leads 
to  a  consideration  of  what  is  meant  by  the  phrase,  "a 
republican  form  of  government,"  as  used  in  the  con- 
stitution of  the  United  States.  It  is  obvious  that  we 
must  limit  ourselves  to  what  was  intended  by  the  au- 
thors of  the  constitution.  The  words  "republic"  and 
"republican"  have  in  the  history  of  the  world  been  ap- 
plied to  varied  forms  of  government,  many  of  which 
are  quite  different  from  our  ideal  of  republic.  This  is 
clearly  pointed  out  by  Mr.  Madison  in  No.  39  of  "The 
Federalist,"  where  he  sets  out  what  are  the  essential 
requisites  of  a  republican  form  of  government,  and  de- 
clares that  the  federal  constitution  is  in  the  most  rigid 
sense  conformable  to  the  standard  of  a  republican  form. 
We  might  well  take  the  government  of  the  United 
States,  as  created  by  the  constitution,  as  a  criterion  by 
whicli  to  judge  whether  any  state  government  is  or  is 


TPIE   MAKING  OF  A   CONSTITUTION  19 

not  republican  in  form.  If  we  find  any  substantial, 
fundamental,  departure  from  the  general  principles  and 
general  forms  of  government  created  by  the  national 
constitution,  we  should  believe  that  such  departure 
would  not  be  consistent  with  the  constitutional  idea  of  a 
republican  form  of  government.  Upon  this  point,  how- 
ever, we  have  the  authority  of  the  greatest  court  in  the 
world  as  to  what  this  language  means.  In  the  case  of 
Minor  z's.  Happersett,  21  Wallace,  175,  the  court  uses 
the  following  language : 

"The  guaranty  is  of  a  republican  form  of  government.  No 
particular  government  is  designated  as  republican,  neither  is 
the  exact  form  to  be  guaranteed,  in  any  manner  especially 
designated.  Here,  as  in  other  parts  of  the  instrument,  we  are 
compelled  to  resort  elsewhere  to  ascertain  what  was  intended. 

"The  guaranty  necessarily  implies  a  duty  on  the  part  of 
the  States  themselves  to  provide  such  a  government.  All  the 
States  had  governments  when  the  constitution  was  adopted. 
In  all,  the  people  participated  to  some  extent,  through  their 
representatives  elected  in  the  manner  specially  provided. 
These  governments  the  Constitution  did  not  change.  They 
were  accepted  preci-sely  as  they  were,  and  it  is,  therefore,  to 
be  presumed  that  they  were  such  as  it  was  the  duty  of  the 
States  to  provide.  Thus  we  have  unmistakable  evidence  of 
what  was  republican  in  form,  within  the  meaning  of  that 
term  as  employed  in  the  Constitution." 

It  is  here  to  be  noted  as  apropos  to  the  subject  which 
is  now  more  widely  discussed  than  any  other  in  New 
Mexico,  that  in  each  of  the  state  governments  which 
Chief  Justice  Waite  says  furnish  "unmistakable  evi- 
dence of  what  was  republican  in  form."  all  govern- 
mental powers  and  functions,  including  the  power  of 
legislation,  were  delegated  by  the  constitution  to  officers 
chosen  directly  or  indirectly  by  the  people,  and  that  in 
no  case  did  the  people  attempt  directly  to  exercise  any 
of  such  powers  or  functions.  It  must  be  clear  that  the 
recent  movements  in  a  few  of  the  states  of  the  Union. 


20  UNIVERSITY  OF  NEW  MEXICO 

having  for  their  object  the  assumption  of  the  duty  and 
burden  of  direct  legislation  by  the  people  themselves, 
are  revolutionary  in  their  character  and  clearly  involve 
a  departure  from  one  of  the  fundamental  ideas  of  a 
republican  form  of  government  at  the  time  of  the  writ- 
ing of  the  federal  constitution. 

This  subject  is  here  introduced  perhaps  a  little  out  of 
its  natural  order,  and  this  is  done  because  it  is  of  more 
general  interest  than  anything  else  at  present  in  con- 
nection with  our  proposed  constitution,  and  seems  called 
for  by  the  primary,  fundamental  consideration  of  what 
the  form  of  government  must  be. 

Somewhat  later,  another  chief  justice  of  the  Supreme 
Court  of  the  United  States,  in  the  case  of  Duncan  vs. 
McCall,  139  U.  S.  461,  uses  the  following  instructive 
language : 

"By  the  Constitution,  a  republican  form  of  government  is 
guaranteed  to  every  State  in  the  Union,  and  the  distinguishing 
feature  of  that  form  is  the  right  of  the  people  to  choose  their 
own  officers  for  governmental  administration,  and  pass  their 
own  laws  in  virtue  of  the  legislative  power  repoesd  in  repre- 
sentative bodies  whose  legitimate  acts  may  be  said  to  be  those 
of  the  people  themselves;  but  while  the  people  are  thus  the 
source  of  political  power,  their  governments,  national  and 
state,  have  been  limited  by  written  constitutions,  and  they 
have  themselves  thereby  set  bounds  to  their  own  power,  as 
against  the  sudden  impulses  of  mere  majorities." 

It  is  quite  true  that  a  very  recent  constitution  which 
included  the  initiative  and  referendum,  w^as  accepted 
and  approved  by  a  President  of  the  United  States  as 
being  republican  in  form,  but  this  was  done,  as  is  gen- 
erally understood,  against  the  advice  and  recommenda- 
tion of  a  great  lawyer,  who  is  now  himself  the  presi- 
dent. 

The  sentiment  in  favor  of  the  initiative  and  referen- 
dum is  a  survival  of  the  Utopian  and  visionary  ideas  of 


THE   MAKING  OF  A   CONSTITUTION  21 

a  purely  democratic  form  of  government — ideas  which 
had  their  advocates  at  the  time  of  the  foundation  of  our 
national  government,  and  which  were  as  well  under- 
stood by  the  authors  of  the  constitution  as  they  are  by 
any  one  today,  and  there  can  be  no  reasonable  doubt 
that,  by  the  particular  form  of  language  used  in  the 
constitution,  it  was  the  intention  not  to  include  a  demo- 
cratic form  of  government.  A  brief  quotation  from  a 
comparatively  recent  work  on  constitutional  law  will 
show  how  clearly  the  author  perceives  this  distinction: 

"The  system  of  government  in  the  United  States  and  in  the 
several  States  is  distinguished  from  a  pure  democracy  in  this 
respect,  that  the  will  of  the  people  is  made  manifest  through 
representatives  chosen  by  them  to  administer  their  affairs 
and  make  their  laws,  and  who  are  intrusted  with  defined  and 
limited  powers  in  that  regard,  whereas  the  idea  of  a  demo- 
cracy, non-representative  in  character,  implies  that  the  laws 
are  made  by  the  entire  people  acting  in  a  mass  meeting  or  at 
least  by  universal  and  direct  vote." 

The  above-quoted  language  was  not  written  witii  any 
view  to  an  application  to  present  controversies,  as  the 
book  was  published  as  far  back  as  1887. 

Another  quotation  from  a  much  more  recent  author, 
whose  highly  esteemed  book  was  published  a  little  over 
two  years  ago,  may  be  of  interest  in  this  connection. 
The  book  is  that  of  Mr.  Stimson  on  "The  Law  of  the 
Federal  and  State  Constitutions."  and  at  page  56  wc 
find  the  following : 

"The  state  initiative  is,  of  course,  direct  legislation  by  the 
people;  and  this,  it  must  be  noted,  is  no  new  thing,  but  merely 
a  recurrence  to  primeval  principles, — doing  away  with  that 
invention  of  representative  government  which  has  served  the 
English  people  well  for  a  thousand  years  and  has  been  com^ 
mended  as  their  peculiar  contribution  to  political  science. 
Direct  logifOation  early  existed  in  England,  as  least  as  to  the 
freemen  or  greater  barons;  indeed,  mention  is  made  by  his- 
torians of  a  Witenagemot  of  sixty  thousand  men  meeting  on 
Salisbury  Plain  not  very  long  after  the  Conquest.     The  incon- 


22  UNIVERSITY  OF  NEW  MEXICO 

venience  and  expense  of  such  large  assemblies,  coupled  per- 
haps with  the  notion  of  greater  wisdom  in  their  chosen  rep- 
resentatives, gave  rise  to  the  device  of  representation.  It  is 
difficult  to  see  why  the  objections  of  a  thousand  years  ago  do 
not  apply  today,  at  least  as  to  the  initiative,  and  even  to  the 
referendum.  The  inconvenience  of  referring  all  laws  to  the 
people  is  already  shown  in  the  usual  provision  that  they  must 
be  allowed  to  vote  on  each  amendment  to  the  Constitution 
separately,  and  that  not  more  than  two  or  three  amendments 
may  be  submitted  in  any  one  year;  for  submission  of  a  law  by 
referendum  is  practically  the  same  in  working  as  that  of  a 
constitutional  amendment." 

Again,  on  page  59  of  the  same  book,  will  be  found 
some  further  suggestions,  worthy  of  respectful  consid- 
eration : 

"A  more  radical  measure  still,  is  that  of  the  recall;  that  is, 
any  senator  or  representative,  or  possibly  even  a  judge  or 
other  officer,  may  be  instantly  retired  by  a  direct  vote  of  the 
people.  As  to  this,  and  indeed  the  referendum,  it  may  safely 
be  said  that  the  laws  should  be  very  careful  to  require  a 
sufficiently  large  proportion  of  the  total  vote.  The  writer 
believes  the  most  serious  danger  of  the  initiative  and  referen- 
dum to  be  its  perversion  to  the  very  corrupt  purposes  the 
institution  is  designed  to  prevent.  It  would  be  easy  enough 
for  a  public  service  corporation,  directly  or  indirectly  con- 
trolling possibly  a  tenth  of  the  voters  of  an  entire  city,  to 
propose  complicated  laws,  by  initiative,  which  the  people 
might  find  hard  to  understand  or  in  which  they  would  take 
little  interest;  and  so  rush  them  through  a  popular  election 
by  a  vote  of  their  tenth  of  the  votes,  the  rest  of  the  people 
not  taking  the  rouble  to  understand  the  question.  The  ex- 
perience of  constitutional  amendments  has  shown  that  the 
votes  upon  them  are  ridiculously  small.  In  New  York,  for  in- 
stance, in  1905,  a  constitutional  amendment  altering  the  en- 
tire economic  law  as  to  the  rate  of  wages  to  be  paid  in  public 
work,  passed  the  popular  electorate  by  a  vote  hardly  one- 
tenth  of  the  total  vote  thrown  for  Governor, — a  far  less  im- 
portant matter." 

Thus  we  may  see,  as  to  this  important  and  much  dis- 
cussed subject,  we  are  confronted  with  the  very  serious 


THE   MAKING  OF   A   CONSTITUTION  23 

danger  that  the  adoption  of  direct  legislation  by  the 
people  might  be  such  a  departure  from  the  republican 
form  of  government  guaranteed  by  the  constitution, 
that  a  lawyer-president,  more  intent  upon  the  conscien- 
tious discharge  of  his  duty  than  upon  the  temporary 
exigencies  of  partisan  politics,  might  feel  himself  con- 
strained to  withhold  his  approval  which  is  essential  to 
our  admissimi  to  the  Union;  and  then  we  have  the  se- 
rious objections  to  the  practical  working  of  the  pro- 
posed new  system. 

As  to  the  latter  subject,  is  there  anything  in  the  his- 
tory of  republican  or  democratic  governments  to  induce 
us  to  believe  that  we  would  obtain  any  better  results 
through  direct  legislation  by  the  vote  of  all  the  people, 
than  we  ha\'e  had  by  the  exercise  of  the  delegated  power 
of  the  people  acting  through  their  chosen  representa- 
tives? It  must  be  admitted  that  a  comparatively  small 
portion  of  the  voters  of  our  country  take  active  interest 
in  purely  public  questions  involving  the  welfare  of  the 
whole  state,  and  a  still  smaller  portion  who  give  time 
to  the  study  of  such  subjects  so  that  their  interest  may 
be  intelligent  as  well  as  active. 

It  may  be  well  to  consider,  briefly  at  least,  what  can 
be  said  in  favor  of  the  adoption  of  the  initiative  and 
referendum  as  a  practical  question,  putting  aside  consti- 
tutional objections.  It  is  urged,  in  substance,  that  it  is 
impossil)le  for  the  people  to  elect  a  legislature  which 
will  respond  to  their  desires  and  which  will  not 
promptly  succuml)  to  the  corrupting  influences  of  per- 
sons and  corporations  possessed  of  wealth  and  power 
and  desirous  of  securing  legislation  for  their  selfisli  pur- 
poses, without  regard  to  the  public  interest.  It  is. 
therefore,  believed  that,  if  the  ])eople  can  retain  in  their 
own  hands  the  power  to  force  upon  the  legislature  by 


24  UNIVERSITY  OF  NlCW  MEXICO 

initiative  the  enactment  of  laws  which,  when  once 
adopted,  necessarily  must  be  beyond  all  legislative  con- 
trol, as  otherwise  the  plan  would  be  futile,  and  by  the 
referendum  the  submission  to  a  popular  vote  of  those 
legislative  enactments  which  a  small  percentage  of  the 
voters  consider  objectionable,  then  the  evils  arising 
from  the  inevitably  weak,  dishonest  and  corrupt  nature 
of  persons  elected  to  the  legislature,  will  be  greatly 
diminished,  as  the  knowledge  that  laws  may  be  referred 
to  the  people  will  tend  to  discourage  the  purchase  of 
legislation  by  unscrupulous  schemers  against  the  public 
good. 

It  is  believed  that  the  foregoing  completely,  although 
very  briefly,  states  the  arguments  in  favor  of  the  initia- 
tive and  referendum,  and  it  is  to  be  noted  that  the 
principal  foundation  of  the  argument  is  in  the  assumed 
incapacity  of  the  people  to  elect  proper  men  as  members 
of  the  legislature.  If  this  is  correct,  it  is  difficult  to 
see  how  the  evil  will  be  remedied  by  having  the  people 
at  large  do  their  own  legislating  when  but  a  small  por- 
tion, either  by  inclination,  training  or  experience,  is 
fitted  for  such  work.  It  is  quite  impossible  to  under- 
stand how  the  people  who,  as  is  assumed,  have  not  suf- 
ficient knowledge  and  judgment  to  select  decent,  honest 
and  incorruptible  legislators,  will  have  any  better  or 
more  judgment,  or  will  be  transformed  from  blind  fol- 
lowers of  wicked  political  leaders  into  beings  of  su- 
perior discernment,  merely  because  they  are  called  upon 
to  vote  upon  the  adoption  or  rejection  of  laws,  with  no 
more  time  nor  opportunity  for  study  and  examination 
of  them  than  they  now  have  for  the  consideration  of 
the  merits  of  candidates  for  legislative  office.  Our 
difficulties  do  not  come  from  the  incapacity  or  inability 
of  the  people  to  vote  wisely  in  the  election  of  legislators. 


THE   MAKING  OF  A   CONSTITUTION  25 

but  are  due  to  the  fact  of  the  practical  indifference  of 
the  masses  to  matters  of  general  public  concern,  and 
this  applies,  not  only  to  the  ignorant  and  uneducated, 
but  to  the  average  citizen  of  superior  knowledge  and 
intelligence,  and  that  indifference  cannot  be  dissipated 
by  changing  the  purpose  of  an  election  from  the  choos- 
ing of  men  to  the  adoption  of  laws.  On  the  contrary, 
there  is  every  reason  to  believe  it  would  be  greater. 

While  it  is  true  that  the  initiative  and  referendum 
have  not  been  in  operation  in  any  part  of  our  country  a 
sufficient  length  of  time  for  us  to  draw  safe  and  certain 
conclusions  from  their  practical  workings,  yet  a  lesson 
may  be  learned  from  what  has  happened  in  the  state  of 
Oregon.  Between  June,  1902,  and  the  end  of  1909, 
there  were  submitted  to  the  people  of  that  state  Z2  dif- 
ferent pieces  of  legislation,  19  of  which  were  submitted 
at  one  election,  and  it  is  reported  that  more  than  30 
others  are  to  be  voted  upon  at  the  next  state  election. 
It  is  not  to  be  assumed  that  the  voters  of  Oregon  are 
very  different  in  virtue,  intelligence  and  public  spirit 
from  those  of  New  Mexico,  and  it  is  certainly  difficult 
for  us  to  believe  that  even  a  respectable  minority  of  the 
Oregon  electors  who  adopted  or  rejected  the  laws  upon 
which  they  voted,  were  fully  and  intelligently  informed 
as  to  what  they  were  doing.  We  do  not  know  just 
how  the  campaigns  as  to  these  questions  were  conducted 
in  Oregon,  but  it  is  not  unsafe  to  assert  that  they  were 
carried  on  much  like  other  political  campaigns,  and 
that  the  people  were  led  to  vote  for  or  against  the  laws 
by  the  personal  influence  or  eloquence  of  those  in  whom 
they  had  confidence,  by  the  business  or  other  pressure 
of  those  to  whom  they  were  under  obligations :  and  it  is 
equally  safe  to  assert  that  legislation  procured  by  these 
methods  will  be  even  less  beneficial  to  the  public  than 


26  UNIVERSITY  OF  NEW   MEXICO 

that  which  results  from  the  efforts  of  the  average  leg- 
islature, hedged  about  and  restricted  by  constitutional 
limitations  intended  to  prevent  hasty,  ill-coiisidered  leg- 
islation. 

If  corporate  greed  or  the  unscrupulous  selfishness  of 
any  class  of  people  should  earnesly  desire  the  adoption 
or  rejection  of  any  law,  without  regard  to  the  public 
welfare,  those  who  might  be  animated  by  such  im- 
proper motives  would  take  an  active  and  vigorous  in- 
terest in  the  election,  while  a  great  proportion,  perhaps 
a  majority,  of  the  people  would  remain  indifferent  and 
unconcerned.  That  this  is  possible  is  clearly  shown  by 
a  story  which  comes  from  Los  Angeles  and  which  I  am 
assured  is  entirely  true.  A  scandalous  condition  exist- 
ed in  that  city  as  to  ill-regulated  and  vice-creating 
dance-halls.  An  ordinance  was  adopted  by  the  city  for 
the  purpose  of  regulating  and  restricting  this  evil.  The 
vicious  and  demoralized  classes,  interested  in  the  dance- 
halls,  with  great  ease  secured  the  necessary  number  of 
signatures  of  voters  for  a  referendum  as  to  this  ordi- 
nance, and  having  an  active  interest  in  the  matter,  voted 
in  full  force  against  the  ordinance,  while  the  average 
citizen  paid  no  attention  to  the  election.  As  a  result, 
the  ordinance  was  set  aside. 

It  is  ordinarily  quite  unsafe  to  prophesy  as  to  the  fu- 
ture, and  personally  I  have,  as  a  rule,  been  quite  un- 
willing to  do  so;  but  I  feel  convinced  that  the  most  of 
us  who  now  earnestly,  and  some  of  us  intolerantly, 
urge  the  adoption  of  these  revolutionary  ideas  in  our 
state  governments,  will  live  to  look  back  with  wonder 
upon  what  is  happening  today,  viewing  it  as  an  exhibi- 
tion of  temporary  insanity,  our  only  consolation  then 
being  that  we  were  at  least  honest  and  sincere  in  the 
course  pursued.  If  my  time  would  permit,  a  number  of 
similar  widespread  political  movements  in  our  history 


THE   MAKING  01^  A   CONSTITUTION  27 

could  be  pointed  out,  which  are  now  memories  only. 

Turning  aside  from  these  particular  subjects  which, 
at  the  present  time,  engross  public  attention  almost  to 
the  exclusion  of  other  constitutional  questions,  it  may 
be  said  that  our  constitution,  like  that  of  the  United 
States  and  those  of  the  different  states  of  the  Union, 
should  adhere  to  the  general  plan  of  making  three 
great  divisions  of  government, — the  legislative,  the 
executive,  and  the  judicial, — and  we  should  strive  to 
keep  the  line  of  demarcation  between  these  departments 
as  clear  and  distinct  as  is  practicable.  If  they  could  be 
brought  into  existence  by  entirely  different  methods 
and  each  kept  entirely  independent  of  the  others,  that 
might  be  an  ideal  condition,  but  practically  this  does 
not  seem  possible,  as  all  must  come,  directly  or  indi- 
rectnly  from  the  people  as  the  original  source  of 
power.  Something  can  be  done  in  that  direction,  how- 
ever, as  I  will  endeavor  to  show. 

It  was  said  by  de  Tocqueville,  in  his  great  work  on 
"Democracy  in  America"  that  if  "a  legislative  power 
"could  be  so  constituted  as  to  represent  the  majority 
"without  necessarily  being  the  slave  of  its  passions ;  an 
"executive,  so  as  to  retain  a  certain  degree  of  uncon- 
"trolled  authority;  and  a  judiciary,  so  as  to  remain 
"independent  of  the  two  other  powers ;  a  government 
"would  be  formed  which  would  still  be  democratic, 
"without  incurring  any  risk  of  tyrannical  abuse."  In 
a  general  way,  this  language  represents  what  we  should 
strive  to  reach  in  our  proposed  constitution ;  but  if  all 
the  officers  of  the  three  great  departments  of  the  gov- 
ernment are  selected  in  the  same  way,  by  popular  elec- 
tion, it  is  almost  certain  that  we  will  fall  far  short  of 
approaching  our  ideal.  Let  us  then  dispassionately 
consider  whether  the  idea  of  submitting  everything  to 
the  popular  will,  which  has  always  been  advocated  bv 


28  UNIVERSITY  OF  NEW  MEXICO 

doctrinaires  of  the  democratic  school  of  thought,  has 
not  degenerated  into  something  akin  to  unreasoning 
fetich  worship,  which  tends  to  weaken  and  disintegrate 
government  and  to  diminish  its  efficiency. 

At  the  present  time,  practically  all  political  parties 
unite  in  their  respect  and  regard  for  the  federal  consti- 
tution. Notwithstanding  the  fact  that  from  time  to 
time  evils  and  abuses  have  crept  into  the  practical  ad- 
ministration of  national  afifairs,  yet  on  the  whole  we  all 
look  back  with  pride  over  our  national  history  and  agree 
that  our  national  government  has  been  strong  and  well- 
administered ;  and  yet  the  constitution  confided  to  the 
direct  vote  of  the  people  nothing  more  than  the  selec- 
tion of  members  of  the  lower  house  of  Congress.  In 
the  course  of  time,  it  is  true  that,  practically,  the  elec- 
tion of  the  president  has  come  to  be  by  the  vote  of  the 
people,  (voting  by  states,  however,  so  that  a  minority 
of  all  the  votes  may  elect  a  president)  although  that  was 
not  the  original  intention  of  the  constitutional  provis- 
ions on  that  subject.  The  senators  are  assigned  equally 
to  each  of  the  states  without  regard  to  population  or 
wealth,  thereby  securing  greater  steadiness  and  equili- 
brium in  matters  of  legislation,  and  a  fair  representa- 
tion of  all  sections  of  the  country  without  regard  to 
mere  numbers.  The  members  of  the  judiciary  are  se- 
lected by  the  president,  acting  in  conjunction  with  the 
senate.  The  only  national  officers  as  to  whose  selection 
the  people  have  any  vote  are  the  president  and  vice- 
president.  The  president,  subject  to  a  possible  veto  by 
the  senate,  selects  his  cabinet  and  the  other  principal 
executive  officers,  with  the  result,  usually,  of  having 
harmonious  and  concerted  action  in  the  transaction  of 
public  business. 

In  most  of  our  states  there  has  been  a  departure  from 
these  sane  and  healthful  methods  as  to  executive  and 


THE   MAKING   OF   A   CONSTITUTION  29 

judicial  officers,  and  they  are  selected  by  popular  vote. 
It  has  thus  not  infrequently  happened  that  the  chief 
executive  of  a  state,  who  is  held  by  popular  opinion 
responsible  for  the  state  administration,  has  found  him- 
self hampered  and  embarrassed  by  the  simultaneous 
election  with  himself  of  other  executive  officers,  nom- 
inally subordinate  to  him,  but  of  different  views,  pur- 
poses, and  ideas,  over  whom  he  practically  exercise? 
iDUt  little  control,  so  that  the  conduct  of  public  business 
is  interrupted  by  unseemly  disputes  between  the  gov- 
ernor and  such  officers,  and  even  among  themselves. 
It  would  be  a  most  healthful  and  beneficial  step  in  the 
right  direction  if  New  Mexico  would  provide,  like  the 
national  constitution,  for  the  election  of  the  chief  execu- 
tive officers,  such  as  the  governor  and  lieutenant-gov- 
ernor, and  leave  to  the  governor,  in  conjunction  with 
the  state  senate,  the  selection  of  other  necessary  state 
officials.  This  would  greatly  diminish  the  cloud  of 
candidates  who  seek  the  suffrages  of  the  people  at  each 
election,  and  would  thus  increase  the  probability  of  an 
intelligent  choice,  while  the  concentration  of  responsi- 
bility would  bring  about  a  more  careful  and  conscien- 
tious attention  to  duty  than  is  evoked  by  the  methods 
prevailing  in  the  majority  of  our  state. 

As  to  the  selection  of  judicial  officers,  too  much  can- 
not be  said  against  their  being  dependent  upon  the  pop- 
ular vote.  The  election  of  judges  by  the  people  is  cer- 
tainly original  in  this  country  and  there  is  but  little  to 
be  said  in  its  favor.  It  is  entirely  incompatible  with  a 
proper  sense  of  independence  on  the  part  of  our  judges, 
who  ought,  as  far  as  practicable,  to  be  removed  from 
all  temptation  to  court  popular  favor.  In  the  history 
of  our  country  it  appears  to  be  the  fact  that  no  serious 
iudicial  scandal  has  ever  arisen  in  any  state  except  in 
some  of  those  where  the  judges  are  elected.     In  at 


30  UNIVI^RSITY  OP  NEW  MEXICO 

least  one  of  those  states  it  is  currently  reported,  and 
generally  believed,  that  judicial  nominations  are  sold 
to  aspirants  to  the  bench  at  sums  fixed  by  political 
bosses,  and  that  the  ordinary  price  is  not  less  than  one 
year's  salary.  I  have  been  told  that  in  that  state  a 
very  young  man,  whose  father  is  a  person  of  great 
prominence  and  wealth,  was  by  this  system  recently 
selected  as  a  justice  of  the  supreme  court,  although,  as 
my  informant  said,  "he  is  as  deaf  as  a  board."  In  an- 
other state,  one  of  the  greatest  jurists  of  our  country, 
who  had  served  for  years  as  a  member  of  the  highest 
court  of  the  state,  falling  under  the  disapproval  of  poli- 
tical leaders  on  account  of  his  judicial  decisions,  failed 
of  renomination  upon  the  expiration  of  his  term,  and 
was  forced  to  leave  the  court,  the  high  standing  of 
which  he  had  done  much  to  create  and  maintain.  In 
still  another  state,  a  member  of  its  supreme  court,  in 
the  discharge  of  his  duty,  wrote  an  opinion  offensive  to 
a  large  number  of  people,  and  being  by  them  marked 
for  vengeance,  failed  of  re-election,  not  because  of  any 
legal  defect  or  weakness  in  the  decision  of  the  court, 
which  correctly  declared  the  law,  but  because  of  popu- 
lar displeasure.  In  still  another  state,  some  years  ago, 
a  man  was  elected  to  a  judgeship, — a  man  who  had 
never  spent  a  day  in  his  life  in  the  study  of  law — and 
after  his  election  and  before  his  term  of  office  began, 
he  felt  compelled  to  resort  to  a  law  school  and  in  a 
rapid  and  hurried  maner  attempt  to  gain  some  little 
knowledge  of  how  to  discharge  his  duties. 

There  is  no  doubt  that  these  illustrations  might  be 
multiplied  if  one  had  the  time  and  patience  to  go  into 
a  careful  collation  of  such  occurrences.  It  is  the  fact 
that  the  lawyers  best  fitted  for  judicial  positions  are 
frequently  not  the  best  vote-getters. 

It  is  difficult  to  imagine  anything  that  can  be  put 


THK   MAKING  OF  A   CONSTITUTION  31 

into  our  constitution  which  would  be  more  convincing 
of  the  sane  and  conservative  character  of  our  people 
than  the  adoption  of  a  provision  for  the  appointment 
by  the  governor,  in  connection  with  the  state  senate,  of 
all  judges  of  courts  of  record,  with  adequate  salaries, 
to  hold  office  during  good  behavior.  This  is  the  only 
practical  way  by  which  anything  approaching  inde- 
pendence on  the  part  of  the  judiciary  can  be  had,  and 
its  desirability  will  be  more  readily  seen  when  we  con- 
sider the  record  of  the  federal  judiciary  created  in  this 
manner.  The  supreme  court  of  the  United  States  has 
repeatedly  shown  its  absolute  and  entire  independence 
of  the  executive  and  legislative  branches  of  the  govern- 
ment, making  decisions  in  some  of  the  most  important 
cases  adverse  to  the  will  of  congress,  to  the  wishes  of 
presidents,  and  against  popular  clamor.  Time  will  not 
permit  the  enumeration  of  particular  instances,  but  they 
are  familiar  to  every  student  of  the  history  of  our 
country  and  to  practically  all  members  of  the  bar. 

An  adaptation  of  the  national  method  of  apportion- 
ing senators  might  be  worthy  of  consideration  in  form- 
ing a  state  constitution.  The  usual  practice  has  been  to 
apportion  members  of  the  upper  house  of  the  legislature 
among  the  people  of  the  state,  in  proportion  to  num- 
bers. Something  approaching  the  federal  system  might 
be  had  by  giving  one  senator  to  each  county  of  the 
state,  without  regard  to  population,  and  we  might  thus 
have  some  of  the  l)enefits  which  have  been  attributed 
to  the  assignment  of  two  senators  to  each  state  without 
regard  to  population  or  wealth. 

Experience  has  shown  that  one  of  the  most  import- 
ant subjects  to  be  expressed  in  a  state  constitution  is  as 
to  the  limitations  upon  legislative  po\ver.  Special  and 
local  legislation  should  be  prohibited  in  all  cases  where 
a  general  law  can  be  made  applicable,  and  the  decision. 


32  UNIVERSITY  Of  NJiW  MEXICO 

as  to  whether  or  not  a  general  law  can  be  applicable, 
should  be  made  a  judicial  question,  to  be  decided  by 
the  courts,  and  not  left  to  the  legislative  will ;  and  the 
courts  should  also  be  given  power  to  review  legislation 
and  declare  it  void  when,  although  general  in  form,  yet 
in  design  and  effect  it  is  special. 

Limitations  upon  state  and  municipal  indebtedness 
and  upon  the  rate  of  taxation,  as  well  as  the  restric- 
tions upon  purely  legislative  power,  are  important  as 
guarding  "against  the  sudden  impulses  of  mere  ma- 
jorities," in  the  language  of  Chief  Justice  Fuller. 

Constitutions  ought  to  contain  some  provision  by 
which  the  legislature  must  provide  a  method  of  as- 
sessment of  property  for  purposes  of  taxation  which 
will  be  fair  and  just,  by  which  no  class  of  men  or  prop- 
erty can  escape  bearing  its  proper  share  of  the  burden 
of  public  expense,  and  which  shall  be  divorced  from 
influences  arising  from  popular  elections  and  local 
politics. 

Much  has  of  late  been  said  in  favor  of  a  clause  in  the 
constitution  providing  for  direct  primary  elections  at 
Avhich  the  various  political  parties  must  select  their 
candidates  for  office  to  be  voted  for  by  the  people.  This, 
if  desirable  at  all,  which  is  as  yet  debatable,  should  be 
regarded  as  a  mere  matter  of  legislation  and  not  proper 
to  be  put  in  the  constitution.  It  is  clearly  within  the 
scope  of  general  legislative  power. 

As  to  the  merits  of  such  elections,  much,  which  I 
have  not  time  to  say,  might  be  said  on  both  sides.  The 
object  sought  to  be  attained  is  a  worthy  one.  Our 
present  system  of  nominations  for  office  by  conven- 
tions of  delegates,  the  foundation  for  whose  selection 
is  found  in  ward,  town,  or  precinct  primaries,  is  more 
in  harmony  with  our  general  system  of  delegated,  rep- 


THE   MAKING  OF   A   CONSTITUTION  33 

resentative  government;  but,  practically,  packed,  dis- 
orderly and  dishonest  primaries,  unregulated  by  law, 
in  which  unscrupulous  men  of  all  parties  are  allowed 
to  participate  with  impunity,  under  the  corrupting  in- 
fluence of  political  bosses,  distort  or  stifle  the  real 
sentiments  of  the  party,  and  repel  the  attendance  of  the 
better  class  of  citizens.  This  condition  should  be  rem- 
edied, but  it  is,  to  say  the  least,  doubtful  whether  the 
proposed  direct  primaries  will  afford  an  adequate 
remedy. 

There  appear  to  be  two  principal  objections  to  the 
direct  primaries.  One  is,  that  the  members  of  one 
political  party  may  participate  in  the  primary  election 
of  the  candidates  of  another  party,  just  as  heretofore 
has  been  done  in  the  unregulated  primaries  for  the 
election'  of  delegates  to  conventions.  There  seems  to 
be  no  practical  way  of  avoiding  this,  and  it  mif>"ht  be 
the  case  that  where  there  is  serious  division  in  one 
party  as  to  who  the  candidate  shall  be,  and  little  or  no 
division  in  the  other,  the  members  of  that  other  party 
could  vote  in  the  primary  elections  of  their  adversaries 
so  as  to  obtain  some  undue  advantage.  It  is  asserted 
in  the  public  press  that  just  this  thing  happened  in  the 
recent  primary  elections  in  the  state  of  Wisconsin.  The 
other  objection  is,  that  a  candidate  for  office  is  com- 
pelled to  make  two  expcnsi\-e  campaigns,  one  to  obtain 
the  nomination,  and  the  other  to  secure  his  election. 
Putting  aside  the  question  of  improper  expenses  of  such 
campaigns,  there  still  remains  a  large  burden  of  per- 
fectly proper  and  legitimate  expenditures,  for  distribu- 
tion of  printed  matter,  the  holding  of  meetings,  the 
services  of  speakers,  and  other  like  matters.  It  is  not 
long  since  a  United  States  senator  from  a  state  where 
such  elections  are  held  for  the  nomination  of  senators. 


84  UNIVERSITY  OF  NEW   MEXICO 

declined  to  be  a  candidate  for  re-election  upon  the 
ground  that  he  could  not  afford  the  expense  of  many 
thousands  of  dollars  to  maintain  a  state-wide  organiza- 
tion to  secure  the  nomination,  and  still  less  could  he 
afford  to  have  other  people  bear  that  expense,  as  those 
other  people  would,  in  case  of  his  election,  think  that 
they  had  a  claim  upon  him  in  his  official  capacity  which 
it  would  be  difficult,  at  least,  to  refuse  to  recognize, 
and  which  might  be  asserted  for  improper  purposes. 
Moreover,  to  become  a  candidate  at  the  primary  elec- 
tion, necessarily  requires  a  considerable  amount  of  self- 
serving  exertions  on  the  part  of  would-be  candidates, 
and  those  men  who  are  the  most  eager  for  office  are 
frequently  the  least  desirable,  while,  by  the  convention 
method  of  making  nominations,  if  properly  conducted, 
it  might  be  the  case  that  men  would  be  nominated  who 
have  never  put  themselves  forward  or  sought  the  nom- 
ination in  any  way. 

A  more  effective  remedy  might  perhaps  be  found  in 
legislative  regulation  of  primary  elections  of  delegates 
to  conventions.  It  would  be  practicable  to  require  such 
primary  elections  of  all  political  parties  to  be  held  under 
official  supervision,  at  the  same  time  and  place  in  each 
precinct  in  the  state,  with  judges  and  clerks  of  election 
appointed  as  in  the  case  of  general  elections.  A  ballot 
box  for  each  political  party  could  be  provided  and  no 
man  allowed  to  deposit  a  vote  in  more  than  one  ballot 
box,  and  a  record  should  be  kept  of  every  voter,  a  sepa- 
rate poll  book  being  provided  for  each  political  party. 
A  registration  might  be  required  for  such  elections, 
which  could  serve  also  as  the  registration  for  the  gen- 
eral election  thereafter  to  be  held.  If  honestly  admin- 
istered, this  system  would  seem  to  provide  a  substantial 


THE   MAKING   OF   A   CONSTITUTION  35 

and  practical  remedy  for  the  present  evils,  of  which  so 
much  complaint  is  properly  made. 

There  are  numerous  other  details  of  what  ought  or 
ought  not  to  go  into  our  constitution  which  fall  natur- 
ally within  the  scope  of  the  subject  assigned  to  me.  but 
the  narrow  limit  of  time  makes  it  impossible  for  me  to 
present  them.  I  believe  I  have,  however,  touched  upon, 
although  briefly,  those  matters  which  are  of  the  great- 
est importance. 

I  compliment  you  upon  your  patience  and  powers  of 
endurance,  and  thank  vou  for  vour  attention. 


.UTHERN  REGIONAL  LIBRARY  FACILITY 


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UNIVERSITY  OF  CALIFORNIA 

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